On November 25, 2013, the undersigned United States District Judge heard oral argument on the United States of America's (the "Government") Motion in Limine to Admit Former Testimony of Unavailable Witness [Docket No. 35] ("Mot. in Limine"). Defendant John Joseph Waters opposes the motion. For the reasons stated herein, the Government's motion in limine is denied.

II. BACKGROUND

Gerard Leon Cafesjian was a retired executive of West Publishing. From 1996 to 2009, Cafesjian employed Defendant Waters as the manager for his personal, business, and philanthropic pursuits. Indictment [Docket No. 1] ¶¶ 4-6. The Government alleges Waters cultivated Cafesjian's trust, and in turn received significant control over Cafesjian's interests, including signing authority over numerous bank, trust, and investment accounts. Through this authority, Waters allegedly embezzled "millions of dollars" from Cafesjian. Id . ¶¶ 6-11. According to the Government, Cafesjian did not learn about Waters' fraudulent scheme until after Waters left Cafesjian's employment in March 2009. When confronted with the fraud, Waters allegedly threatened to reveal personal information about Cafesjian in an effort to dissuade Cafesjian from further investigating or reporting the scheme. Id . ¶ 16.

On March 13, 2012, Waters filed a pro se civil action against Cafesjian. In the civil suit, Waters claimed to have an employment agreement with Cafesjian that in part compensated Waters based on the total value of Cafesjian's assets. See generally Compl., Waters v. Cafesjian, No. 12-648 RHK/LIB (D. Minn. Mar. 13, 2012). Waters alleged Cafesjian failed to compensate him per their agreement, and Waters sought several million dollars in damages.[1]

To preserve testimony in the civil action, Cafesjian's then-counsel, Andrew Lugar of Greene Espel PLLP, scheduled Cafesjian's deposition. The approximately four-hour deposition took place over three days in August 2012. Lugar questioned Cafesjian for about one hour on the first day of the deposition, and Waters personally questioned Cafesjian for the remaining three hours of the video-taped deposition.

One year later, on August 5, 2013, the Government indicted Waters with 20 counts of mail and wire fraud, three counts of tax evasion, and thee counts of filing false tax returns. Cafesjian died the following month, on September 15, 2013. The Government now seeks a ruling to allow Cafesjian's civil deposition testimony to be admitted as evidence in Waters' criminal trial.

III. DISCUSSION

Rule 802 of the Federal Rules of Evidence bars the admission of hearsay evidence offered at trial. See also Fed.R.Evid. 801 (defining "hearsay" as a statement made by a declarant outside of the current trial or hearing, which a party offers in evidence to "prove the truth of the matter asserted in the statement"). Among the exceptions to the rule against hearsay is prior testimony of an unavailable witness. See Fed.R.Evid. 804. "Former testimony" is defined under Rule 804(b)(1) as testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had - or, in a civil case, whose predecessor in interest had - an opportunity and similar motive to develop it by ...

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